Introduction

The Case Law Database (“CLD”) is a gateway to the jurisprudence of the ICTR, ICTY, and IRMCT Appeals Chambers.

It provides direct access to extracts of key judgements and decisions rendered by the ICTR, ICTY, and IRMCT Appeals Chambers since their inception, as well as to full-text versions of the corresponding appeal judgements and decisions.

Users can conduct quick searches by notions, cases names, titles of filings, date (in year-month-day format), statutes, rules, and other instruments through the “Basic Search” page. In addition, refined searches in all fields of the database can be conducted through the “Advanced Search” feature.

Please note that the CLD does not include confidential decisions and restatements of established case law and does not necessarily contain all notable rulings by the Appeals Chambers of the ICTR, the ICTY, and the IRMCT. For exact numbering of footnotes, refer to full documents.

The CLD is a living tool and its content is being regularly updated. Please help us improve the service by using our feedback form.

Help

Browse the list of legal notion titles using the A-Z index. Click on the notion to show the page containing relevant case law extracts.

Submit Feedback

Please help us improve the service.

You can send ideas to marshague at un dot org

Thank you very much for your help.

Interference with witnesses

The Trial Chamber granted provisional release to Jadranko Prlić during the Defence case in December 2008, despite the fact that Prlić had met with a potential witness during previous releases in breach of the conditions imposed by the Trial Chamber. Such a breach, according to the Trial Chamber, warranted a sanction, but not denial of provisional release. The Prosecution requested the Appeals Chamber to quash the decision on the basis, inter alia, “that the Trial Chamber committed a discernible error in finding that Prlić’s unauthorised meeting with Witness Neven Tomić … was coincidental and that Prlić’s previous meetings with this witness did not violate the applicable terms of provisional release”.[1]

In granting the Prosecution’s Appeal, the Appeals Chamber first reasoned that these meetings breached the conditions of the provisional release, and accordingly had bearing on his reliability.

8. Prlić met with Tomić while on provisional release despite the clear conditions imposed by the Trial Chamber not to meet with any potential witnesses.[2] […]

10. The Appeals Chamber […] finds that, considering the circumstances, including the positions of the two individuals during the indictment period[3] and their long-time acquaintance,[4] no reasonable trier of fact could have concluded that Prlić, even before [the submission of the list of witnesses by the Defence], was not aware that Tomić would be at least a potential witness […] The breach of the order puts into doubt the reliability of Prlić in abiding by the conditions of provisional release.

The Appeals Chamber further considered that the Trial Chamber is expected to take into account the influencing of witnesses under the criteria identified by Rule 65(B):

11. […] [T]he possibility that potential witnesses are unduly influenced in such circumstances […] is one of those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision under Rule 65(B) of the Rules.

13. In assessing whether the appellant will pose a danger to any victim, witness or other person if released, the Appeals Chamber acknowledges that the Trial Chamber described in the Trial Judgement the particular circumstances of this case, including that “[t]he difficulty in obtaining evidence was a prominent feature of this trial and a few witnesses who were expected to give evidence on central aspects of the case were never heard”.[1] It further considers that, in its appeal, the Prosecution requests a retrial for Brahimaj and his two co-accused, and seeks to adduce the evidence of certain witnesses.[2] The Appeals Chamber also notes that the Prosecution opposes Brahimaj’s provisional release because the “potential risk” of witness intimidation[3] “remains a continuing concern in light of the relief being sought”.[4]

14. Nonetheless, the Appeals Chamber considers that a number of circumstances tip the balance in favour of meeting the second requirement of Rule 65(I) of the Rules. First, the Appeals Chamber notes that, while a retrial could be ordered as a result of the Prosecution appeal, it is also the case that Brahimaj could be acquitted or his sentence could be decreased as a result of his appeal.[5] The Appeals Chamber considers that it is not likely that Brahimaj will pose a danger to potential witnesses at this stage of proceedings as the outcome of the case is unforeseeable and a retrial is only one of the possible outcomes. Second, the Appeals Chamber notes that Brahimaj points out that each of the potential Prosecution witnesses lives outside Kosovo (where he seeks permission to be provisionally released),[6] and that the Prosecution does not challenge this allegation.[7] Third, the Appeals Chamber considers that an assessment of danger posed to victims, witnesses or others cannot be made in the abstract and that there is no substantiated indication from the Prosecution that Brahimaj will seek to intimidate witnesses.[8] The Appeals Chamber is further satisfied that Brahimaj’s past period of provisional release was without incident.[9] In view of these factors, the Appeals Chamber finds that Brahimaj, if provisionally released, would not endanger victims, witnesses or other persons, as required by Rule 65(I)(ii) of the Rules.